KAUS, P. J.—Concurring. I am not as sure as Justice Stephens that the judgment should be reversed, nor as certain as Justice Aiso that it should be affirmed. The ease is, indeed, a very close one.
I disagree with Justice Stephens’ opinion to the extent that [21]it holds that the officers could not even question the occupants of the car. I see nothing illegal in that confrontation. The officers had every right to make an investigation. Their suspicions were quite properly increased when they received an evasive answer concerning the ownership of the car. While this corroborated the telephone informant to some extent, it obviously fell far short of “corroboration of the essential fact, as to whether [the defendant was] now violating the law.” (People v. Reeves, 61 Cal.2d 268, 274 [38 Cal.Rptr. 1, 391 P.2d 393]; see also People v. Gallegos, 62 Cal.2d 176, 179 [41 Cal.Rptr. 590, 397 P.2d 174].)
Nor do I question the right of the officers to order the occupants of the car onto the sidewalk, although I would feel more comfortable about it if I felt more certain that the police were not, in truth, making an arrest. Certainly they gave Miranda’s [384 U.S. 436 (16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974) ] admonition that the warning of constitutional rights must be given when the suspect has been “deprived of his freedom of action in any significant way” a very broad, though probably prophetic interpretation.1
Undoubtedly no right to arrest had ripened before the police witnessed defendant’s attempted disposal of the key to the trunk. I do not think that this action, though undoubtedly “furtive,” can be permitted to add anything. Most assuredly it did, as a matter of common sense, further arouse the officers’ suspicions and heighten their desire to see what was inside the trunk; but, if defendant, instead of trying to make it physically impossible to get inside the trunk, had said that he would not permit a search, there would have been nothing the officers could have done about it except on Justice Aiso’s theory, to be discussed later on, that under the circumstances of this case the mobility of the car permitted a search of the trunk without a right to arrest any of its occupants. In Tompkins v. Superior Court, 59 Cal.2d 65, 67-68 [27 Cal.Rptr. 889, 378 P.2d 113] the defendant did not stand his constitutional ground verbally—he slammed the door in the policeman’s face. Yet the court held that his action could not be considered on the subject of probable cause because, if it were, “the right to be free from unreasonable police intrusions would be vitiated by its mere assertion. ’ ’
Thus I believe that we cannot consider the matter of the [22]key. We therefore need not decide whether, if we could do so, it would provide sufficient corroboration of the informant to meet the test as laid down in Reeves and Gallegos. Thus viewed the case becomes quite analogous to People v. Mickelson, 59 Cal.2d 448 [30 Cal.Rptr. 18, 380 P.2d 658] where our Supreme Court restated the rule (People v. Blodgett, 46 Cal.2d 114, 117 [293 P.2d 57] ; People v. Martin, 46 Cal.2d 106, 108 [293 P.2d 52]) that facts short of probable cause to arrest give the police the right to detain for questioning. (Cf. Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is often forgotten, however, that the actual holding in Miekelson was that the search of the automobile in which defendant and his companion were riding when they were stopped, exceeded the permissible scope of the investigation. (Ibid., p. 454.)
I now come to Justice Aiso’s theory that there was a right to search the trunk, apart from any right to arrest defendant, on the ground that there was probable cause to believe that it contained contraband.
It is apparent that this must be a very special kind of probable cause, something less than would justify an arrest, but more than the “circumstances short of probable cause to make an arrest” of which the court spoke in Mickelson. If it were the former, the dissent would merely have to say that the search was justified as being incident to the right to arrest. (People v. Cockrell, 63 Cal.2d 659, 665-667 [47 Cal.Rptr. 788, 408 P.2d 116].) It cannot be the latter, unless we ignore the result of Miekelson. Having, both as reader and writer, struggled through dozens of cases which involve the fine distinctions between probable cause and “circumstances short” thereof, I confess that I find the notion of a third concept, sandwiched somewhere between the other two, quite appalling.
I recognize that in one reported ease, Perez v. Superior Court, 250 Cal.App.2d 695 [58 Cal.Rptr. 635], it was held that in view of the mobility of automobiles an investigatory or exploratory search could be made “incident to an equivocal situation which does not suggest the commission of a specific offense. ” I do not think that Perez is good law.
Perez, like the dissent in the case at bar, relies on Carroll v. United States, 267 U.S. 132 [69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790], which makes the obvious distinction between stationary homes and mobile automobiles; but, I believe, that distinction is material only where the difficulty is the absence of a warrant. Our problem is probable cause. More specifically [23]it is whether there is probable cause to search the trunk of a car for contraband, the possession of which is a felony, where the police have ample reason to believe that the defendant is in knowing, constructive possession of the contents of the trunk, but—ex hypothesi—there is insufficient probable cause to arrest him.
To be sure Carroll does contain the statement that “ [t]he right to search and the validity of the seizure are not dependent on the right to arrest” but this must be read in context.
The court first declared the law as follows: “ The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband . . . therein which is being illegally transported.” (Ibid., pp. 155-156 [69 L.Ed. pp. 552-553].) It then turns to deal with the argument that the search was illegal because the offense of transporting the particular contraband involved—-liquor— could be only a misdemeanor2 and that no crime had been committed in the officers’ presence as far as they knew from their own observation. Hence they had no right to arrest. It is in the context of meeting that argument that the first quoted statement was made. There is not the slightest suggestion in Carroll that, when the offense is a felony, probable cause to search is something different than probable cause to arrest.
Of course Carroll and its successor, Brinegar v. United States, 338 U.S. 160 [93 L.Ed. 1879, 69 S.Ct. 1302] refer to the fact that automobiles are not houses and that their mobility makes certain procedures reasonable which would violate the Fourth Amendment were they applied to buildings ; but the difference between home and car does not lie in any different standard with respect to probable cause. The difference merely results in a relaxation of the necessity for a warrant. This is clearly brought out in Brinegar where the court says: “The Carroll decision held that, under the Fourth Amendment, a valid search of a vehicle moving on a public highway may be had without a warrant, but only if probable cause for the search exists. ...” (Ibid., p. 164 [93 L.Ed. p. 1884].) At this point in its discussion the Supreme Court appended a footnote quoting the following passage from Carroll: “ ‘The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.
. . . On reason and authority the true rule is that if the [24]search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of the circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. ’ Carroll v. United States, 267 U.S. 132, 147, 149 [69 L.Ed. 543, 549, 45 S.Ct. 280, 39 A.L.R. 790].” (Ibid., p. 164 [93 L.Ed. p. 1884].)3
Nor does our own Supreme Court interpret Carroll in any other way. The dissent in this ease quotes from People v. Terry, 61 Cal.2d 137, 152-153 [37 Cal.Rptr. 605, 390 P.2d 381]. I will not go into the facts of Terry at any length, except to say that there the police had probable cause to search the automobile many times over. The only issue was whether they should have obtained a search warrant. Replying to the contention that they should, the court then adverts to the difference in mobility between buildings and automobiles.
In sum, I do not believe that where the justification for a search of a car is a belief that it contains contraband, the standards of probable cause are any different than those we apply when the contraband is not in the trunk of a car but in the suspect’s pocket. In the ease at bar, it would be much easier for me to vote for an affirmance on the basis that the police had probable cause to arrest defendant—again, this is a very close question—than on the rationale of the dissent.
There are, of course, situations—see for example People v. Grubb, 63 Cal.2d 614, 618-619 [47 Cal.Rptr. 772, 408 P.2d 100] and People v. Smith, 63 Cal.2d 779, 800 [48 Cal.Rptr. 382, 409 P.2d 222]—where an automobile may be searched without a warrant, not incident to a legal arrest and without probable cause to believe that it contains contraband. (Cf. People v. Burke, 61 Cal.2d 575, 578 [39 Cal.Rptr. 531, 394 P.2d 67].) This case does not involve any of the recognized exceptions to the general rule.
I regret that for the reasons indicated I must concur in the reversal of the conviction of an obviously guilty defendant. I [25]regret it particularly since the police conduct, though illegal, was very near the borderline and reasonable men may well differ about the proper location of the border. The trouble with this case started at the very beginning of the investigation. I realize it is dangerous business for courts to assume the expertise of another profession, but it seems rather obvious to me that one way not to investigate the activities of a person who is selling what may be contraband to all comers is to arrive at the scene with two uniformed police officers in a police car.
The confrontation took place on August 23, 1966, just over two months after Miranda.
The federal statute involved provided that the first two violations thereof were to be punished as misdemeanors.
Immediately preceding the passage quoted the Srinegar court says:
“The crucial question is whether there was probable cause for Brinegar’s arrest, in the light of prior adjudications on this problem, more particularly Carroll v. United States, 267 U.S. 132 [69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790], which on its face most closely approximates the situation presented here.” (Ibid., p. 164 [93 L.Ed. p. 1884].) It seems to me that this sentence alone makes untenable any contention that a lesser degree of probable cause, than is needed to arrest, will justify a search.